Who is Responsible? The Criminalization of HIV Transmission

You may have thought that HIV is a disease, but we are seeing a serious resurgence of the idea that HIV transmission is a crime. Sure it is important to promote basic knowledge, safe sex, testing and care, but when people actually infect other people – so goes the argument – it’s time to call in the police. Criminalization has been an off-and=on issue in the US for twenty years, but the rest of the world seems to be seeing a new surge. Close on a dozen countries in West Africa have added new statutes on HIV exposure in the past two years, and there have been high-profile prosecutions in countries as different as Britain and Singapore. (For an excellent analysis of the British cases, see the book by Professor Mathew Weait; for for good coverage and analysis of the cases, see Edwin J. Bernard’s blog).

Over the next few weeks, I’ll be blogging on this issue as part of my participation in the international AIDS conference in Mexico City, August 2-7. I’ll be going over the arguments against criminalization and describing the activities around the issue at the conference. For now, though, I am going to show how criminalization plays out by telling you about a very interesting decision handed down last month by the Swiss Federal Court. It is, as far as I know, the first case in which a person who did not have actual knowledge of his HIV status has been found guilty of a transmission crime. Read on…

The Story

Mr. A_______ was an “educated, cosmopolitan and experienced” gentleman who divided his time between Switzerland and Spain. During the Spring and Summer of 2002, he had unprotected sex on a number of occasions with Ms. X_______ .

A_______ believed that he was HIV-negative, but had known since 2000 that Ms B_______, a woman with whom he had also had unprotected sex, had been diagnosed with HIV. After learning of B_______’s diagnosis, A_______ had continued to have sex with her but had always used a condom. He apparently never got an HIV test himself, but believed he was not infected because he had never had the acute flu-like symptoms that usually signal seroconversion after infection. He never mentioned the fact that a past partner had tested positive for HIV to X_______. For her part, X_______ testified that she had had other partners before A, but had always practiced safe sex. The case proceeded on the theory that B_______ had infected A_______, and A_______ had then infected X_______, the complainant in the case.

So far, it sounds like a sad tale of modern love, a case of sex with detriments. A lot of passion, a good bit of denial, some stupidity, and too little communication. Routine Sex in the City stuff (for a discussion of how safe sex and STDs were dealt with on the famous show, click here.) Sex in the world, I should say, because this is pretty much the way HIV gets spread: people who know they have had unprotected sex in the past with someone whose infection they cannot rule out have sex with new people whose HIV infection they cannot rule out. Most people most of the time are lucky, particularly if they live somewhere where the overall prevalence is low and those who have HIV can get treatment, which according to another branch of the Swiss government actually renders people non-infectious. What we’d like to see happen at moments like this is that both parties recognize the risk and take precautions until such time as they can be reasonably certain that neither of them is infected. Public health interventions spread that message and try to give people the condoms, skills and confidence to practice safe sex. What it comes down to, though, is that “safe sex” really should be called “smart sex.” That, alas, makes “safe sex” a euphemism for an oxymoron, because there is not much evidence that smart is a big part of human sexual behavior. People will usually do their best, but sometimes the A_____s and X_____s of the world will be too complacent about the possibility that a guy who looks and feels great might just have HIV.

The Decision

The Swiss Federal Court saw a crime, upholding A’s conviction on charges of negligent infliction of bodily harm and negligent transmission of a deadly disease – and his nine month prison sentence. Two aspects of the court’s judgment are of particular interest: how the court transforms public health advice on safe sex into binding rules of sexual conduct, and how the victim’s failure to follow the rules does not prevent the onus of criminal responsibility being placed on the defendant.

First, the court adopted as the standard of care for criminal law purposes the Swiss health agency’s safe sex guidelines:

The measure of care to be observed in connection with the transmission risk of HIV is established by the recommendations of the Federal Office of Public Health (so-called safer sex rules). They indicate that protected sex with condoms is sufficient protection against HIV infection. Outside loyal partnerships, safer sex is always recommended, and is recommended within loyal partnerships if one of the partners is possibly infected and cannot rule out HIV infection with reasonable certainty. Reasonable certainty is a negative HIV test after three months (serological window) since the last risky encounter, including any sexual act that is not considered safer sex.

A______ happened to know that a past partner was HIV positive, but he could have been guilty even without that. If a person has had unprotected sex with anyone whose sexual history he does not know, the court declared, he “is obliged to renounce unprotected sex as long as he cannot reasonable exclude the possibility of his own HIV infection.” You’d think that this might have some implications for A’s defense, since X had also had other casual partners and, though she insisted she had always used condoms, even the court was dubious and in any event the protection rubbers afford is not complete. The court dismissed the possibility that X was contributorily negligent. Yes, she could have insisted upon condom use with A_______(as required by those “safer sex rules”), but failure to do so was no default. The decisive point was that “only [A] knew that he had had unprotected sex with the HIV-infected B.________. He never informed the complainant. Likewise, she did not know that he had failed to take an HIV test and despite the information from B.________ continued to have unprotected sex apparently unconcerned about the consequences his behavior could have.”

The court’s finding of criminal negligence on the part of A was premised on the safer sex rules and related public health efforts:

Because of the government campaigns for AIDS prevention, it must be considered to be generally known that unprotected sexual intercourse with unknown or changing sexual partners brings with it a significantly increased risk of infection and the obligation to take appropriate protective measures (use of condoms). In risky behavior these protection measures are required of all, not least of an educated, cosmopolitan and experienced person such as the respondent.

Yet X, apparently also a well-traveled and sophisticated person, was not at fault for failing to practice safer sex:

It cannot be accepted, and we will not hold, that [X] had the knowledge – particularly the knowledge of the respondent’s earlier risky contact with B_______ — that would have been necessary to make an informed choice to engage in unprotected sex.

The court was, in my view, quite right about X. She could have figured that A might well have a risky past, since he certainly had a risky present with her, but that would have been smart sex and that is just too far from normal human behavior to constitute a fair standard for criminal law purposes. The mistake was applying that standard to the even more clueless A_______.

The decision also affirmed a civil judgment against A_____. Although I doubt that tort can play a useful role in HIV prevention (for many of the same reasons criminal law cannot), nonetheless my reaction to the court’s reasoning in its civil guise is entirely different than my reaction to its criminal enforcement. Negligence is about ordinarily human carelessness; there is certainly an element of moral blame, but it is minimal, and as Holmes famously explained, we often enforce standards in tort that we realize many of us will fail to meet a lot of the time. Most of us are lucky enough that no harm follows our carelessness. The unlucky are required to compensate their even more unfortunate victim, whose own negligence may be taken into account in the final reckoning. The sanctimony and stigma of criminal sanctions is, sensibly, absent.

More on this over the next three weeks.

The case, X v A, 6B_235/2007 /hum, is available in German on the court’s website. I’ve posted separately my translation of the key sections of the decision on this blog.